Abstract

In Italy all forms of surrogacy are forbidden, whether it be traditional or gestational, commercial or altruistic. Act n. 40 of 19/2/2004, entitled «Rules about medically-assisted reproduction», introduces a prohibition on employing gametes from donors, and specifically incriminates not only intermediary agencies and clinics practising surrogacy, but the intended parents and the surrogate mother too. Other penal consequences are provided by the Criminal Code about the registration of a birth certificate where parents are the intended ones, as provided by the lex loci actus (art. 567 of the Italian Criminal Code, concerning the false representation or concealment of status). Apart from the mentioned criminal problems, several aspects of private international law are involved. In the cases where national rules forbid the transcription of birth certificates for public policy reasons, specifically the prohibition of surrogacy, Italian Judges often seek solutions to enforce the status filiationis, in view of the fundamental principle of the «best interest of the Child». Focusing on the recent evolution of the notion of international public policy, in some cases the inherent adoptive parental status acquired by a homogenitorial couple is not contrary to international public policy, when the effects of the act from which this status derives are not incompatible with the limits that cannot be exceeded constituted by the founding principles of the relational choices between intended parents and child (Article 2 of the Constitution, Article 8 ECHR), by the Best interest of the child as codified in the Italian Law 219/2012, by the principle of non-discrimination, by the principle of solidarity that is the basis of social parenting. Splitting the problem of the surrogacy, sometimes the adoption is the remedy suggested in the Italian case-law to enforce the status filiationis. Many private international law problems are highlighted by this paper, above all considering the interesting insights elaborated by the Italian Constitutional Court, in the recent Judgments n.32/2021 and n.33/2021, despite the declared inadmissibility of the question of constitutional legitimacy of art. 12, paragraph 6 l. 40/2004, art. 64 letter. g l. 218/95, art. 18 d.P.R. 396/2000 (by contrast through art. 117 of the Constitution of articles 2, 3, 7, 8, 9, 18 Conv. on the rights of the child and art. 24 Charter of fundamental rights, and art. 2,3, 30 and 31 of the Constitution)